How a Supreme Court case about tire chips relates to 19th-century religious discrimination

Facade of US Supreme court in Washington DC on sunny day

On its surface, the latest religious freedom case before the Supreme Court is about state-funded tire shreds. A religiously affiliated preschool, Trinity Lutheran Church Learning Center, wants them for its playground in order to soften the surface children play on, but the state of Missouri says churches aren't eligible for scrap tire grants.

Like most states, Missouri has a constitutional provision barring public money from flowing directly to religious organizations. Similar rules have previously derailed school voucher programs and church participation in other types of grants.

These provisions draw a clear line between faith-related organizations and their secular counterparts in order to protect states from violating the First Amendment's establishment clause, which prevents government from favoring one faith group over others.

"The Supreme Court has said that states have some leeway to build a higher wall of separation (between the church and state) than the First Amendment requires," explains Richard Garnett, a law professor at the University of Notre Dame, in The Federalist Society's short video about the tire-chip situation.

"The children who use this playground — not just students at Trinity Lutheran, but all the kids of the neighborhood — are just as precious as any others, and just as entitled to the protection of a civilized state," wrote lawyers at Becket in the organization's amicus brief in support of the church. "If Missouri excluded all entities with names beginning with a 'T,' the restriction would be struck down in a second."

The case asks the Supreme Court to consider when efforts to abide by the establishment clause violate other aspects of the Constitution, said Robert Tuttle, a law and religious studies professor at George Washington University. When does keeping public money from churches become problematic?

"In one respect, this is about ground-up rubber tires on a playground. But in another sense, you can think of it as a question about virtually any kind of funding for houses of worship," Tuttle said.

Appropriate distinctions or discrimination?

Sorting out the difference between strict separation and religious discrimination is complicated, especially because many of the cases requiring this analysis involve Blaine Amendments, or laws linked to anti-Catholic bigotry in the late 19th century.

They're named after James Blaine, a former Republican speaker of the House of Representatives from Maine who proposed a U.S. Constitutional amendment in 1875 that would keep states from channeling funds to private, religious schools.

His amendment failed, but many state lawmakers were interested in the idea. Around the turn of the 20th century, Blaine Amendments were passed in more than 30 states, and many of them were a direct attack on Catholic communities.

At that time in America, Catholic immigrants from Europe were surging into the country, upsetting a religious landscape previously dominated by Protestants. Catholics were accused of being more loyal to the pope than the president and criticized for choosing private parochial schools over the public education system.

"There was a deep suspicion of people who didn't want to integrate into American society," Tuttle said.

Many religious freedom advocates argue that — because of their bigoted beginnings — Blaine Amendments should be removed from state constitutions. Complaints about Missouri's provision were scattered throughout the amicus briefs filed on behalf of Trinity Lutheran Church.

Blaine Amendments "were born of bigotry against Catholics. Now, they're used to keep any religious organization from getting funds," Hannah Smith, senior counsel at Becket, said in an interview.

Most notably, they complicate efforts to create school voucher programs because some Blaine Amendments prevent even indirect government funding of religious schools. A ruling against Blaine Amendments would make it easier to promote school choice across the country, as The Christian Science Monitor reported.

Some legal experts, including Tuttle, say Blaine Amendments serve an important purpose, regardless of their ugly beginnings. They help keep religious groups from walling themselves off from the surrounding culture, and they protect states from violating the establishment clause.

"Reducing these amendments to just bigotry is a mistake," Tuttle said.

These amendments have been targeted by the conservative religious community in recent years, even before the scrap tire case made it to the Supreme Court. In the midst of culture wars over same-sex marriage and school vouchers, these faith groups could benefit from having easier access to public money, Tuttle added.

"They want voucher funding for schools, and they also want more freedom in providing other kinds of social services without government constraint," he said.

Trinity Lutheran Church lost in federal district court and federal appeals court, where justices ruled that previous Supreme Court decisions protect a state's right to disqualify religious institutions from publicly available funds.

However, the Supreme Court agreed to considered the case in January 2016, highlighting circuit-level disagreement about when drawing a line between religious and secular applicants to funding programs is actually necessary.

During oral arguments Wednesday, April 19, justices asked lawyers for the state of Missouri to explain why and when religious organizations are set apart from their secular counterparts. They were responding to Trinity Lutheran's concern that the state could eventually argue that it shouldn't have to provide fire or police protection to faith groups.

Justices also referenced a recent change to Missouri's public grant policy. The governor announced Friday, April 14, that churches will now be eligible for programs like the scrap tire grant, so the Supreme Court will have to consider whether a ruling in Trinity Lutheran Church v. Comer is still necessary.

It's pretty safe to say this case won't solve ongoing disagreements over Blaine Amendments and religious discrimination, said Douglas Laycock, a law and religious freedom expert at the University of Virginia. The Supreme Court's ruling, which will be handed down by the end of June, will likely be narrow.

"I would be astonished if they say that religious schools are entitled to funding if secular private schools get funding. That would be a much broader holding, and this case is not about that," he said.

However, if Trinity Lutheran Church wins, the justices are expected to send a related case, Douglas County School District v. Taxpayers, back to the Colorado Supreme Court. It involves a school voucher program and requires judges to determine whether public funds (in the form of vouchers) can legally be provided to religious schools. The case centers on Colorado's Blaine Amendment, which is widely understood to have targeted Mexican Catholics in the state.

In other words, a ruling for the church in Trinity Lutheran Church v. Comer could pave the way toward a more direct ruling on the legality of Blaine Amendments.